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tv   [untitled]    November 5, 2012 3:30am-4:00am PST

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your operation? >> it's absolutely vital. it seems like it's not such a big deal between midnight and 2:00 a.m. we're open from 5:00 through until 2:00. but a vast majority -- i believe what would be a vast majority of our patrons would opt for other options in their evening if they knew they had had to cut sht short at midnight and simply wouldn't show up for the earlier hours. >> thank you. >> is there anyone here representing the subject property owner? seeing no one, mr. sanchez? >> thank you. scott sanchez, planning department. i wish i could just distract you by saying that giants are up 6-1 and leave it at that,
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but unfortunately, we failed the appellant and we failed the neighbors in properly doing our job. so i will outline the process of events here for the board. so in incidence of 2007 conditional use application was filed for the bar and restaurant called alths and there was a hearing in march of 2008. at this hearing there were neighbors that expressed concern about the operation of the outdoor activity area associated with the restaurant. so the planning commission did add additional conditions to the approval. we typically give draft motion and that draft motion had seven conditions. at the hearing the planning commission added five additional conditions, 8-12 that included closing the outdoor time at 12:00 a.m. and
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no amplified music except in cabanas was part of the proposal. no outdoor entertainment except twice a month before 7:00 p.m.also lighting couldn't cause a glare and entertainment commission had to review the application. so those were the motions -- the motion was adopted with those additional conditions. however, the motion was not finalized with those additional conditions and as to vice president fung's comment about the nsr, the notice of is special restrictions would have only included 1-7 and would not have included the others. the appellant did their research on the property and their due diligence and aware of the conditional use application and give them credit for doing the proper research. unfortunely when they went to our website to look to the motion it was a motion that didn't have the complete list of conditions of approval.
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neighbors raised concerns about the hours of operations and noted to the entertainment commission there were limitations -- further limitations on the use and couldn't be open past 12:00 a.m. per the planning commission. it's my understanding that the entertainment commission continued that item to the call of the chair. after that hearing i received a call from the executive director of the entertainment commission about what was going on there. at that time in the end of april, early may be discovered that that motion was finaled without the complete conditions of approval. we issued an amended motion that included the additional conditions of approval and sent that to the entertainment commission and to the applicant on file for the cu and the property owner. it should be noted that the appellant was not the applicant of the cu, so they did not receive it from the property owner and did not receive it
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from the entertainment commission and that was the last we heard until this year with a complaint from the neighbor with the outdoor area operating past 12:00 a.m. in march we sent an enforcement notice and the appellant responded promptly, two days later. there was a meeting on the 13th of march. i think it was explained that the process -- you could legalize the extended hours. however, you need to go and amend the conditional use authorization that was previously granted to remove that condition of approval. and i don't any of the other conditions of approval were a problem for the appellant, if i remember correctly. it was just limitation on the hours of operation. so with in a, i think they had set up an appointment time for an intake for the conditional use authorization amendment. however, they showed up and decided they did not want to pursue that and probably
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feeling that something was fundamentally unfair with the fact that they had done their due diligence and relied on city records and can certainly understand that. they were informed of the enforcement process and what that would entail. so we noticed a issue of violation penalty. they made a zoning administrator hearing request, which is part of the due process rights. it is a hearing that i hold with the appellant and other parties. and we listen to additional arguments. we had that meeting on july 10th, and i expressed at that hearing that it was clear that the department had made a mistake. i expressed sympathy to the appellant and even stated in our final notice of decision, i think this -- like i said, this is a place where the city did make an error. however, while it would be -- i think
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it's a fundamentally unfair to the appellant to enforce a condition, it's also fundamentally unfair to the neighbors not to enforce the condition and as zoning administrator, i don't have the authority not to enforce conditions. and it was appeal to the board and before you for consideration. those are the statement of facts and again, we found the additional conditions of the approval not included because we did go back and review the minutes. the minutes are publicly available, but i think, if you go to the website, and see a conditional use authorization, you stop there and you are not going to go and do additional research and any nsr would not have included those additional conditions either. it was simply the department erred in finalizing the motion without all of the required conditions. and i apologize for that error. and it's unfair to all of the
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parties. so that is what we have for the board. there is the path of going back to the [tphro-gs/] amend the conditional use authorization. and should the planning commission agree, then that could be changed and it could be limited, i don't know, maybe the appellant would have some kind of -- maybe it's not everyday that they need past 12:00 a.m., just weekends and maybe they could have some kind of compromise and discussions with the neighbors. maybe have neighbor support at the hearing to mott modify the conditions of approval. that is all i have. i am available for questions. >> i have a question, mr. sanchez. how many complaints did you receive? if that packet i only see one letter complaining of the hours of operations? >> i believe there is only one complaint on file. that is not to say there are more affected parties, but i think there is only one complaint in our records. >> so help me understand, i mean, i see the competing
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equities here because the error that occurred and the appellant is now suffering the consequences, but also the need to balance the neighbor's concerns here. so i'm wondering if there is a process whereby, i don't know we can amend the conditional use and then that the neighbors would have an opportunity to appeal that? >> no. the board of pales does not have the authority, in my legal opinion to amend the conditional use authorization. you could discuss that with the city attorney. only the planning commission has the authority to do that. >> what does the city attorney say? >> i agree. it's clear. that resides with the planning department. and those issues are appealed to the board of supervisors, but not to the board of appeals.
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>> thank you. >> mr. sanchez, before you leave. first, you have verified that the website indicates only 1-7? >> yes. the website no longer does that. we did upload. >> essentially it did? >> initially. >> and then you have verify what is your address is at the county recorder? >> we have not verified the notice of special restrictions, no. that is around excellent point and we can investigate that. >> we can take public comment now s. there any member of the public who wishes to speak? please step forward. >> hello. my name is courtey and i live at 691 post on the corner of
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jones and i can see the entrance of jones from my apartment window. i am here today to ask that you retain the notice of violation and penalty decision from july and that one, the jones be required to shut down by midnight each day that they are open. jones bar stays open until 2:00 a.m. on friday and saturday nights and causes a lot of mayhem between midnight and 3:00 am. drunk people throwing up, fights on the streets, breaking bottles, lots of yelling, car accidents and the police i have walked out to see what is going on down there and i find thatit police are watching what is happening, but not doing anything to stop. it in the past two years, the noise has gotten worse forcing me to take drugs and wear earplugs to fall asleep. it shows a total lack of respect to neighbors and i can't imagine what it's like for tenants that live above the
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courtyard at the gaylord. i heard from tenants that there are a few who have been paid to leave because they complained that the noise was so unbearable. so they were paid to leave the residence because of this. no. 2 jones is required to serve food while they are open. as i understand it, they are operating on a specific permit requiring them to serve food the entire time that they serving alcohol. i have gone to their sidewalk entrance and asked person managing the entry if dinner is able vaughn only told that they do not serve dinner and only available for brunch on sunday. they do not serve food outside. further the jones patio level son the main level first floor of the gaylord and to get to their bar and restaurant area you enter through street level entrance.
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the outdoor space is much larger than their indoor space at the gaylord and it's above a parking garage on geary. it's outdoor and street level at the street level entrance on jones, but above street level on geary. the worker at jones uses -- no. 3 [#3*-/] a worker uses the white zone as a personal parking space. there say white loading and unloading zone and there is an employee there who park his toyota land cruiser in the white loading zone for hours at eight time, but there is no loading and unloading bean done with that vehicle. no. 4, jones needs to provide safety for patrons leaving their establishment. like i previously mentioned they are so drunk they pass out on the sidewalk and their interest friends are so drunk to call for an ambulance.
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nobody is helping. thank you. >> thank you. any other public comment? >> yes. hi. my name is [kao-erpblgs/] keith, a resident at 691 post. i just want to touch on the main points of this argument. he has made a point he was not aware of the amended motion of 17565, even though the planning commission has stated that the meeting minutes were available at the time he did review on the website:vice president fung, you asked limb directly if he did go to the district office to review the title? and no effort was made, even though we cannot verify special restrictions were recorded, the extent of the due diligence
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that has been stated that was performed in 2009 was not extensive or correct, despite the amount of investment that has been made by the business operators, they did not go about this in the correct way to establish that they were operating within the rights of the certificate of authorization. there is another point here with the certificate of authorization. is that there is no entitlement for them to operate with the aforementioned before signed entitlement of the cu in question. so in his appeal, that we are reviewing today, he stated that he does not believe a certificate of authorization is required and his quote was
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imec holds that the conditional use authorization was not for our use and the publicly available information regarding the conditional use authorization did not condition limiting our hours." that is not true because they were fully aware of the amendment and tried to associate themselves with it, stating that it belongs to them or didn't belonged to them, even though they were unaware it. another important issue is the statement of the address of operations. was the patio being two-thirds of the business, and only accessible by 620 jones, stating that the public use of 560 geary allows the whole business to operate without the certificate of authorization, but with the address for the
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patio area, which is the main operation of the business. having a certificate of authorization, with amendments of 8-12 stating that their operation hours should shut down at midnight. they declined an opportunity to amend, make a further amendment and manipulated the appeals process to -- in an effort to avoid amending the cu. >> thank you. >> thanks. >> any other public comment? >> hello. my name is barbara and i live at 691 post at the corner of jones and post. my husband and i are an older couple living there, 70 and 73 and we have lived in the building for several years and
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have some idea what has been happening with the city over the last ten years. there has been a lot of changes. what we're asking for in this permit is that we feel we need reasonable limits to what is happening with this bar. because this neighborhood has a lot of families living there, people with children, older people, people who have lived in the neighborhood for 20 and 30 years. and we just would like to have what i would say -- i call it reasonable limits. we know we're not living in the suburbs or we wouldn't be living where we are, but also we don't think we should be totally run over by the forces in the city, which is money and finance, and you know, people who want to make money without regard for any other considerations. all we're asking them do is to
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obey the law as we understood it. there will not be excessive noises and close at midnight and there would be some kind of regulation or attempt to maintain a good establishment. a few years ago, especially in 2008 -2009 the neighborhood was totally quiet. the reion is just cut out all the street noise, all of the traffic and all of the bars and everything else. and so it was very quiet. but now the activity has come back into the neighborhood and that is good. we know it's good for the city, but every friday and saturday i say to my husband we're going to be up late tonight, between 12 and 2:00 it becomes excessive and sometimes it goes on until 3:00 in the morning. it's a little ridiculous, actually. we're not asking too much. you know, we're asking them at
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12:00, just follow your rules and we're asked to follow the law and all we're asking is that lethy also follow the law. >> ma'am, did you get your keys to the gate? >> yes, we go our keys to the door and the gate. thank you very much. >> we'll have rebrutal. >> i didn't catch the name of the last lady that spoke, but that was some of the more sensible componentry that i heard. while i really appreciate. sentiment and the recognition that we're all downtown on jones and post. there were some blatant misstatements earlier. with regard to no food being
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served. we had one of the better known chefs in the city that helps us out, ula and he has had a restaurant well forever a decade, south of market. he has left and we now just hired a gentleman from a very, very reputable lace. we really wouldn't be spending $100,000 a year on a chef if we weren't serving dinner. no one was paid to leave. one of the neighbors directly above the restaurant was a vegan. and also sober. she is a great lady and we had an ongoing dialogue all the way through the construction process and we worked with her on times that we worked and didn't work. and in the end, the smell of the burgers was just too much for her. she moved to the other side of the building. we helped her do it. i feel that is a very neighborly thing. another neighbor just had an
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operation. she had an issue with the crowd noise. recently we put in double pane windows for her so she could recover in peace. everybody that has ever approached us about anything, neighborhood-wise has always gotten a card from myself or our general manager and everyone has our personal cell phone numbers if there are issues. i feel what i proposed earlier is a very elegant solution. the language of the code being what it is, technically speaking, this could be viewed as a ground floor or basement-level use. because the ent [ra-pbts/], as somebody pointed out is off an alley off of jones street and the base of the restaurant itself is actually in the basement of the hotel. so i actually am running out of time, but i actually went back
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and reviewed the original planning commission hearing since this whole process has started. the neighbors' concerns were not with the hours of operations. there is not a single person during that hearing that spoke to the issue of hours of the operation. the neighbors were concerned with the venue being a nightclub. we don't have cabanas and we don't have entertainment as our program. we are a restaurant and a bar. so in that way we have addressed all of the issues that were brought up at the original hearing. the solution that was proposed by one of the planning commissioners is [ha*-erbgs/] let's shut it down at midnight and we know it's not a club. we don't have the permit for entertainment. we don't do entertainment. that is where we're at. >> the conditions 1-7, are they the planning commission's typical good-neighbor
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conditions? >> >> >> they are independent of the good-neighbor polices. the good-neighbor policies are something that the police department enforces along with the entertainment commission. i believe that the planning department added on a number of conditions as part of their process. i think those are parallel tracks. >> okay. >> is there any room for negotiation between you and the zoning administrator? >> well, we actually only open until 2:00 on weekends and it's absolutely essential that we're allowed to do this. during the week, we close down at midnight. >> is there any cover over the courtyard? >> no, sir. well, we have ut brelas that open up and close
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>> would you consider partition and possibly make something modifications in the rear? >> it's in the front. i'm not sure what you are requesting. >> let's all right. let's continue the meeting. >> have i a question. >> yes, ma'am? >> if i missed this, i apologize, but i think you actually made an appointment to file for a new conditional use authorization and decided not to. >> that is correct. >> i would be interested to know why you did not pursue that avenue? >> our attorney says this is categorically not the right way to go and the city can't change the rules in the middle of the game. so we withdrew.
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>> thank you. >> yes, ma'am, thanks? >> mr. sanchez. >> thank you. scott sanchez planning department, good news, the giants are up 8-1 now. in regard to vice president fung's comments or the question about the conditions of approval of it's prettyboilerplate 1-7. it doesn't really speak to the good neighbor gestures other than the community liaison, which it sounds like from the appellant he is the community liaison or his manager and anybody who approaches will be given contact information. so that would satisfy that requirement. there is recordation of the nsr. should implementation the project result in complaints from interested property owners, residents or commercial lessees not resolved and findly the zoning administrator to be in violation of the code or conditions of approval, we refer the use to the commission and they may seek to revoke the
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conditional use authorization and that could be another step to take it to them to revoke the cu. i think it's probably in everybody's interest that the cu be feeled to modify these conditions of approval. the authorization itself does not specify a license type, abc alcohol beverage control license stipe or regulate or limit the ability to serve alcoholic beverages. limiting the hours of operations only applies to the outdoor activity area and doesn't apply to the bar as a whole. so they could still be operating until 2:00 a.m. and be consistent with the approval, but it's just the outdoor area. in regarding to some of the questions raised about basement versus second story. this is actually two lots. so it's one that fronts on jones and one that fronts on geary and the property that fronts on
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jones has the gaylord hotel and it's in the basement [thra-efplt/] the cu contemplated that and said you do not need a conditional use authorizia for that. the part you need a cu is for the outdoor activity area, which is on the second story the roof of the lot of the structure that is on geary. and so that is why the conditional use authorization was required at that time. and those conditions of approval were adopted. so with that, i'm available for any questions that the board may have. >> i have another question. so can you just clarify for me, what was the basis of the nov? was someone's complaint there was operation beyond 12:00 a.m.? >> that is correct. we are complaint-driven as an enforcement division and the complaint was made at the beginning of this year. we followed up and did find they were in violation of the hours of operations conditions that was in the amended motion.
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and proceeded from there. >> i guess i'm wondering how that complainant would have none about that condition, if the website didn't have that information? >> so i think the timing of events is that we have the conditional use authorization hearing back in 2008. and at that hearing this were members of public that expressed concerns. then in 2010, they go to the entertainment commission and expressed the same concerns and also questioned why the motion on file between 2008 and 2010 did not have the condition limiting the hours of operations? that is when we found out about it from the entertainment mission and issued the amended motion. so i would imagine some of the neighbors that are here may have been involved in that original hearing process possibly. >> okay. got if. thank you. >> is the -- this is not a club? i thought he said there
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is no entertainment? why did they have to go to the entertainment commission? >> i don't know. the matter that was in front of the entertainment commission was continued to to the call of the chair. >> if it had to go there, they have a set of good neighbor conditions that they also apply, dealing with a control of the people on the sidewalk, some levels of security and all of those kinds of things. you folks have that, too, in terms of good neighbors. so i'm wondering, well we can ask the project sponsor. why is the entertainment commission involved here if there is no entertainment or club activities? >> i think the appellant can address that, but also to be clear. i don't think our department was aware of any concerns about drunken people on the sidewalk until the hearing this evening and the complaint we received was about the operating beyond

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